Commonwealth Mechanisms for Democracy and Human Rights Compliance by Member States

This briefing paper was presented by Commonwealth Human Rights Initiative (CHRI) http://www.humanrightsinitiative.org/ at the Commonwealth People’s Forum, held in parallel with the Commonwealth Heads of Government Meeting in Kampala, Uganda in 2007. It covers the first ten years of CMAG’s history.

The Commonwealth has a number of compliance mechanisms which monitor the progress of human rights and democratic governance in member countries. The Commonwealth is perhaps the only international organisation which has the mandate to publicly express concern on serious or persistent violations of democratic principles in a member country, and take appropriate measures to reverse such derogation without being accused of interfering in the internal affairs of states.

The Commonwealth’s most formal mechanism for assessing member countries’ compliance with the Harare Principles is the Commonwealth Ministerial Action Group (CMAG) which is constituted by Commonwealth Heads of Government every two years. CMAG has the power to suspend countries from the councils of the Commonwealth if circumstances require such extreme measure, without waiting for formal endorsement from Heads of Government.

CMAG also has the power to readmit a suspended member in the Commonwealth without seeking Leaders’ approval, if it is satisfied that the concerned country meets the Harare benchmarks fully.

Despite some apparent setbacks in a few countries that violated the Harare Commonwealth Principles, namely Zimbabwe, Pakistan and Fiji Islands, as well as its long engagement with The Gambia, Maldives and Cameroon for democratic and electoral reform, which is yet to bear fruit, the Commonwealth has come out stronger and consistent in implementing its rules of engagement. These mechanisms, which are broadly classified as formal and informal, can be further refined and made effective through greater co-ordination within the Commonwealth family involving the Commonwealth inter- governmental bodies, Commonwealth accredited organisations and Commonwealth civil society organisations.

The Commonwealth remains the most effective organisation for pooling resources and involving governments, NGOs and media as partners in democracy and development.

Introduction

Constitutional guarantees for individual liberty and fundamental freedoms, backed by a strong and independent judiciary are an essential feature of democratic societies. Commonwealth countries’ commitment to the fundamental political values of the Commonwealth, and in particular the Harare Commonwealth Principles, is rooted in this principle. The task of deepening democracy and institution building is not possible without taking into account the role citizens play in democratic governance and the freedoms they enjoy in exercising their rights without any unlawful restrictions imposed on them by the state, institution, group or individual.

Commonwealth Heads of Government have resolved in the Harare Commonwealth Declaration and subsequent CHOGM Declarations to abide by their commitment to democracy and the rule of law and other fundamental values. They have also agreed to place their governments under certain compliance mechanisms which are collectively administered by the Commonwealth and guide the work of the association in advancing human rights in member countries.

1. INFORMAL MECHANISMS

1.1. Role of Commonwealth Agencies and Organisations

A number of Commonwealth accredited organisations such as the CPA, CLGF and CAPAM pursue their activities in the overall context of the Harare Commonwealth Principles. Although these organisations work quietly and often in their own specialised areas, they identify and promote good practice in human rights, gender equality, democratic pluralism, decentralisation and devolution and liberal democracy.

1.2. Civil Society Networks

The Commonwealth Foundation is responsible for coordinating the activities of professional associations and civil society organisations in member countries. The Foundation’s work is supported by a number of independent Commonwealth civil society organisations which focus in specific areas, such as the CHRI in human rights, and CTUC in trade union issues.

1.3. Commonwealth Media

Commonwealth media organisations, in particular the CBA, CPU and CJA have helped to free media from government control and provided training to media personnel in member countries. Media freedom is an important component of democracy and human rights.

1.4. Commonwealth Academic Institutions and Think Tanks.

Commonwealth universities and think tanks such as the CPSU have made a valuable contribution in generating fresh ideas to constantly test the relevance of the Commonwealth in modern times. They have defined the vision of the Commonwealth as an association working to empower people, promote fundamental freedoms and create economic opportunity in a globalised world.

2. FORMAL MECHANISMS

2.1. Good Offices Work of the Commonwealth Secretary- General for conflict prevention and resolution.

At the Coolum CHOGM, Commonwealth Heads of Government reiterated their commitment to strengthening the good offices role of the Secretary-General in supporting democratic practice, resolving tensions, conflict prevention and resolution and post-conflict rebuilding.

Under present arrangements, it is not possible for CMAG to formally discuss a country where the Secretary-General’s good offices role is ongoing. CMAG can only intervene if the good offices do not resulted in any tangible progress on compliance with the Harare Principles. This places the Commonwealth Secretary-General in a sensitive position. If a period of two years could be set as the upper limit for good offices, CMAG could directly engage with these countries by placing them on its agenda after this deadline.

By its very nature, the Commonwealth good offices process for conflict resolution is unpredictable and has no end date. During this period, if the fundamental human rights

2.2. The Commonwealth Secretariat

The Commonwealth Secretariat has several programmes for deepening democracy and promoting human rights in member countries which are overseen by the Human Rights Unit and the Political Affairs Division. In addition, a number of other Divisions provide support for the Secretary General’s good offices role and assist member countries in institution building and reform.

The Commonwealth Secretariat also builds strategic partnerships with other Commonwealth bodies and institutions, as well as with regional and international organisations to coordinate its work in conflict resolution, local government reform, parliamentary good practice, election observation, human rights, gender mainstreaming and legal and constitutional reform in member countries.

2.3. Special Envoys

The Secretary-General’s good offices involve the appointment of Special Envoys who assist the process of negotiations and consensus building in times of crisis and/or serious violation of Harare Principles. Special Envoys have also been appointed when member countries request assistance for resolving internal conflict or overseeing constitutional and electoral reform. A meeting of Special Envoys was held in London in 2006 to review the Commonwealth’s ongoing work and draw up lessons from their collective experiences.

The work of the Special Envoys is not easy. It is also complicated by the fact that Special Envoys are not authorised to make any commitment on behalf of the Commonwealth for technical assistance

for capacity building or development projects. This reduces the ability of Special Envoys to press for early action.

Special Envoys are also sometimes not available on a full time basis to pursue the good offices mandate in a sustained manner.

2.4. Commonwealth Election Observers

Election observation has been a flagship of the Commonwealth’s democracy and human rights programme for over fifteen years. It has provided the basis for further engagement with member governments for technical assistance for capacity building for the electoral management body, for introducing good offices and for providing vital reports to CMAG on the basis of which the Group has sometimes suspended countries from the councils of the Commonwealth.

2.5. CHOGM and Commonwealth Ministerial Meetings

The Commonwealth has taken failing countries to task through public statements of disapproval as well as through suspension from membership if they repeatedly fall short of their commitments on democracy, human rights, rule of law and separation of powers.

The Commonwealth’s disapproval of states’ non-performance on human rights goes much further than the steps taken by any of the international organisations, including the UN. Although Commonwealth Foreign Ministers have met annually since 2002, the body that has the direct mandate from Heads of Government to act as the custodian of Commonwealth’s fundamental political values is the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG).

Although Heads of Government have given CMAG full powers in regard to taking appropriate measures, including imposition or lifting of suspension, they have sometimes taken matters outside the remit of CMAG as happened in the case of Zimbabwe when they decided to set up a Troika to deal with Zimbabwe. Subsequently, the Troika was expanded and became a Committee of Six Prime Ministers to deal with the Zimbabwe issue. Generally, Heads of Government have rarely interfered with the work of CMAG and endorsed its decisions.

2.6. CHOGM Chairperson-in-Office

Since the Coolum CHOGM, CMAG has also benefited from the contribution of the Chairperson in Office, whose representative is on the membership of the Group. The Secretary-General also consults the Chairperson in Office on good offices.

The role of the Chairperson in Office between one CHOGM and another is still evolving and has not yet been defined formally. To supplement this role, the Commonwealth tried the concept of the Troika, by constituting a Committee, comprising the past, current and future Chairpersons in Office, but it was not very successful.

2.7. Commonwealth Ministerial Action Group (CMAG)

CMAG is a vital source of support and encouragement to member countries in upholding the fundamental political values of the Commonwealth as enshrined in the Harare Declaration. At the same time, CMAG acts as a ‘court’ for those countries which have persistently violated Harare Commonwealth principles or undermined democracy on the grounds that these reflect national circumstances.

CMAG has provided broad strategic direction to the Commonwealth Secretary-General for the provision of technical assistance required by member governments to help with constitutional reforms, independence of the judiciary and capacity building for effective election management bodies.

CMAG’s work is guided by two mutually reinforcing mandates. These have been endorsed by all member countries. However, these mandates do not constitute any legal instrument and do not have the force of international law. These are:

(i) Millbrook Action Plan on the Harare Declaration (1995) which set up CMAG.

(ii) Realising Millbrook (March 2002) which clarified CMAG’s mandate to cover situations of serious or persistent violations of the Harare Principles other than military overthrow of democratically elected governments.

The clarified mandate of CMAG lists ten measures that CMAG can take in its engagement with the concerned member country to persuade it to comply with the Harare Principles, or face expulsion.

(i) Consultation by the Chairman of CMAG or the Secretary- General with the government concerned;

(ii) Appointing an envoy or group of eminent Commonwealth representatives to facilitate constructive dialogue in the country concerned;

(iii) Encouraging bilateral demarches by member countries, especially those within the region, both to express disapproval and to support early adherence to the Commonwealth’s fundamental political values;

(iv) Soliciting the support and intervention of regional organisations in promoting adherence to the Commonwealth’s fundamental political values;

(v) After due consultations, the prompt public expression by the Secretary-General of the Commonwealth’s collective disapproval;

(vi) Suspending the member country concerned from the Councils of the Commonwealth;

(vii) While under suspension from the councils of the Commonwealth, a member country should not receive new Commonwealth technical assistance, other than that directed to the restoration of democracy;

(viii) Stipulating an appropriate timeframe for the re-adherence to the Commonwealth’s fundamental political values, after which CMAG could recommend that the member country concerned be fully suspended from the Commonwealth;

(ix) Other steps considered necessary to engage a member government on the need for progress or to express the collective concern of the Commonwealth;

(x) Consideration of appropriate further bilateral and multilateral measures by all member states (e.g. limitation of government- to-government contacts; people-to-people measures; trade restrictions; and, in exceptional cases, suspension from the association), to reinforce the need for change in the event that the government concerned chooses to leave the Commonwealth and/or persists in violating the principles of the Harare Commonwealth Declaration even after two years.

In circumstances of continuing serious breaches of the Commonwealth’s fundamental political values, CMAG may consider recommending to Heads of Government that the member country concerned be expelled from the Commonwealth.

Step (x) has never been applied by CMAG. Nigeria returned to democratic rule before this step was contemplated in 1997. On Pakistan, Zimbabwe and Fiji Islands, CMAG went only as far as step vii, namely suspending these countries from the Councils of the Commonwealth.

3.1. There are three distinct mechanisms which enable the Commonwealth to remain engaged with member countries in support of deepening democracy, good governance, the protection of human rights, respect for the rule of law, independence of the judiciary, transparent and inclusive parliamentary processes, freedom of expression, devolved local government and political reform.

3.2 While there is full and satisfactory coordination between A & B and growing coordination between A & C, there is hardly any coordination between B & C. Closer interaction between civil society and CMAG can build confidence of the countries under CMAG’s audit and multiply channels of assistance. It will also help build domestic capacity for monitoring compliance and release resources for work in other priority areas to link democracy with development.

3.3. The volume and division of work between A & C is balanced but the same is not the case between A & B. While there were as many as 12 countries on the good offices activity in the period following the Malta CHOGM, there were only two countries on the CMAG’s agenda in the same period. CMAG also decided in 2006 to meet in fewer regular sessions than before.

3. Assessment and Conclusions

3.1. CMAG remains the most effective multilateral body in international affairs which has the ability to suspend member countries from the association for violating democratic principles. Its ability to positively engage with countries in order to support and strengthen democratic institutions should be strengthened by enabling the Group to directly call upon other relevant Commonwealth organisations and bodies such as the Commonwealth Foundation, Commonwealth Parliamentary Association, Commonwealth Local Government Forum, Commonwealth Human Rights Initiative and Commonwealth Policy Studies Unit to provide assistance through their monitoring, awareness and capacity building workshops and other training programmes.

3.2. Throughout its work, CMAG has focused on two main issues: subordination of the military under civilian democratic institutions and strengthening the machinery and processes for transparent and free elections. CMAG has not laid sufficient emphasis on promoting liberal democracy in member countries. It has not given priority to respect for fundamental freedoms and individual liberty over all other aspects of government responsibility such as equality, social justice, democracy, stability and law and order.

3.3. CMAG has often overlooked the responsibility of governments to promote sustainable development and achieve consensus building as enshrined in the Harare Declaration and reiterated in the Millbrook Action Programme. The Group has limited its work to promoting only the fundamental political values of the Commonwealth in member countries. At the Abuja CHOGM Heads of Government declared that development and democracy are interlinked and enforce each other strongly. The Millbrook Action Programme also requires that CMAG should link sustainable development to the Commonwealth’s fundamental political values and divide its work equally in both areas.

3.4. CMAG’s mandate on the measures it can take against countries failing the Harare Principles is sufficiently detailed in the Millbrook Action Programme as well as the document ‘Realising Millbrook’. However there is no clear definition of what constitutes serious or persistent violations of the Harare Principles. Member governments have escaped CMAG’s scrutiny despite situations where elections have been postponed beyond the constitutional life of the government, where political parties have not been allowed to function freely or where fundamental human rights of citizens have been abrogated. There is an urgent need to agree on some normative criteria of the breaches of Harare Principles the existence of which should justify CMAG’s direct engagement with the concerned countries, in addition to the involvement of the Chairperson in Office and the Commonwealth Secretary-General’s good offices role.

3.5. CMAG should be encouraged to take note of the June 2006 CHRI Report on the performance of Commonwealth members on the UN Human Rights Council titled: Easier Said than Done’. There are 12 Commonwealth countries currently on the UNHRC, namely, Bangladesh, Cameroon, Canada, Ghana, India, Malaysia, Mauritius, Nigeria, Pakistan, South Africa, Sri Lanka, United Kingdom and Zambia. These countries have a greater moral obligation to fulfill their human rights commitments compared to other member countries which are not represented on the Council.

3.6. In reality, the pursuit of human rights goals by the Commonwealth has been challenging. Other than CMAG and the Commonwealth Secretary General, who represents the collective voice of governments, member countries have been reluctant to speak publicly in condemnation of the serious or persistent violations of the Harare Principles by another member country. Some do so to protect their bilateral relations; others take a broader view of developments where sometimes Harare Principles are overshadowed by other more significant geo-political considerations. There are also those who prefer to keep quiet because they expect that in the event of a similar situation arising in their countries, the others will take a similar stand and not criticise them publicly.

3.7 Another challenge is that in an increasingly globalized world where regional economic blocs are emerging more powerful than global international groupings, the Commonwealth, as an inter-governmental organisation, does not have a massive development assistance budget, political or strategic dimension or military and technological portfolio to keep its members fully committed to the association’s goals.

3.8. Taken seriously, the Commonwealth not only gives weight to the voice of small and developing states in regional economic groupings, it also works in ways that are more action oriented than being just a grouping of diverse countries.

About the author. Mr Syed Sharfuddin is a former Special Adviser for Political Affairs in the Commonwealth Secretariat, London. He was Deputy Conference Secretary of CHOGM and CMAG from 2000 to 2006. Mr Sharfuddin joined the Pakistan Foreign Service in 1977 and served in senior diplomatic positions in Washington, Harare and Dhaka before joining the Commonwealth Secretariat in 1996. Mr Sharfuddin specializes in South Asia and has written regularly on democracy and good governance.